Opinion
CLAIM NO. F404346
OPINION FILED OCTOBER 10, 2005
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Eddie Walker, Jr., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by Honorable Curtis Nebben, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed, in part, and reversed, in part.
OPINION AND ORDER
Respondents appeal from an Administrative Law Judge opinion filed December 29, 2004, finding that the claimant sustained a compensable injury to his low back and left hip for which he is entitled to indemnity and medical benefits. Based upon our de novo review of the entire record, and without giving the benefit of the doubt to either party, we find that the decision of the Administrative Law Judge must be affirmed in part and reversed in part. Specifically, we find that the claimant has established by a preponderance of the evidence that he sustained a compensable injury to his lower back which is supported by objective medical findings. Therefore, we find that this portion of the Administrative Law Judge's opinion should be affirmed. We further find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his left hip. Therefore, we find that this portion of the Administrative Law Judge's decision should be reversed.
The claimant was involved in an incident at work on December 2, 2003, when he fell while attempting to push a 12 inch piece of pipe with his feet. The claimant promptly reported the incident and was instructed to seek medical treatment from Dr. Gary Moffitt. Upon reporting to the Arkansas Occupational Health Clinic, the claimant was examined by Dr. Moffitt's nurse practitioner, Max Beasley. Mr. Beasley recorded the history of injury and examined the claimant. Although Mr. Beasley took a history and recorded that the claimant denied any back pain, the history did contain references of radiating pain from the left buttock down to the left knee. Mr. Beasley assessed the claimant with left hip and low back strain. The claimant was released to return to work with restrictions. After undergoing conservative treatment for approximately one month without any improvement, Dr. Moffitt recommended an MRI following the claimant's examination on December 30, 2003. In his report dated December 30, 2003, Dr. Moffitt opined that the claimant's condition "sounds like he probably has a radicular process." The lumbar MRI performed on January 6, 2004, revealed a small to moderate broad based disc bulge at L5-S1 with lateral components which appeared to abut the L5 nerve root but did not display definitive evidence of nerve root impingement. The bilateral hip MRI performed on that same date revealed bilateral avascular necrosis more prominent on the left. After receiving these test results, Dr. Moffitt referred the claimant to Dr. Scott Cooper, an orthopedic surgeon.
In a letter to Dr. Moffitt dated January 16, 2004, Dr. Cooper stated:
Thank you for letting me participate in the care of Harl Clifton Ledford. As you know, he has avascular necrosis of both of his hips. I have recommended core decompression on the left or symptomatic side. I am not convinced, however, that all of his symptoms are coming from this. He understands that it's highly unlikely that his work injury caused his avascular necrosis. I also made sure he understands that I believe him when he tells me that he began hurting with this injury. I think it's possible that some of his symptoms are spine related. The MRI does suggest an L-5, S-1 disc bulge. We're going to get a nerve conduction test to see if we can better define this. If indeed some of his symptoms are related to spine pathology, it might be that part of it is appropriately a worker's compensation problem, in my opinion.
Likewise in the History and Physical Examination report prepared that same date, Dr. Cooper noted:
We talked about and he understands that the work injury probably did not cause his avascular necrosis. He does not think it caused his avascular necrosis. I also told him that I believe him when he tells me that he did not begin hurting until this on the job injury. That is about the extent of my judgment on this. If indeed, spine pathology has to do with his symptoms, then that portion ought to be certainly considered for a workers compensation. . . .
Dr. Cooper performed a chordae compression of the claimant's left hip on January 27, 2004. In a follow-up report dated February 9, 2004, Dr. Cooper again noted that the claimant's hip pain was gone although the claimant continued to experience back pain. By March 8, 2004, Dr. Cooper again noted that the claimant was doing well with regard to his left hip avascular necrosis, but that the claimant's back pain had not improved. Consequently, Dr. Cooper referred the claimant back to Dr. Moffitt for additional treatment of the back.
In a report dated March 9, 2004, Dr. Moffitt recorded a history of improved hip pain following surgery but continued back pain in the middle of the lower back. After conducting a physical examination, Dr. Moffitt opined that the claimant "probably has lumbar facet strain." Dr. Moffitt prescribed physical therapy and medication. After undergoing this conservative treatment without improvement, Dr. Moffitt recommended an additional MRI and a referral to a neurosurgeon. The MRI performed on April 9, 2004, revealed the presence of a posterolateral/lateral disc herniation on the right at L5-S1.
The claimant sought treatment for his pain from the hospital and eventually came under the care of Dr. Cyril Raben, an orthopedic specialist. After examining the claimant, Dr. Raben opined in a report dated April 20, 2004, that the claimant is suffering from a subannular herniation with possible sciatic irritation, for which he recommended disc space injections and possibly surgery. Dr. Raben further stated in his report that, "Most certainly, within a reasonable degree of medical certainty, the area of hypointensity (the subannular herniation) could have been caused by the injury . . ."
The claimant has since come under the care of Dr. Stevan M. Van Ore. In a handwritten note dated September 9, 2004, Dr. Van Ore wrote:
This man had bilateral avascular changes in both femeral head found on MRI approximately 1 month after his fall. This type of necrosis can show up in 2 wks. He is and has had progressive pain in left hip. He did have a "live bone placement" left hip [illegible] success(sic).
This patient also has herniated disc L5S1 with encroachment The [left] sciatic is involved.
Mr. Walter, this patient didn't have either problems until the fall. Within the realm of medical probability, this is all related. He needs a left total hip and even a possible discectomy soon The right hip can wait until we have increased pain.
The claimant returned to Dr. Cooper on June 8, 2004. The claimant advised Dr. Cooper at that time that his hip does not hurt as bad as it used to. When the claimant advised Dr. Cooper that another doctor told him that avascular necrosis could develop in 30 days, Dr. Cooper advised the claimant that he thought it was "extremely unlikely that he got avascular necrosis in both of his hips after falling down unless he dislocated or at least partially dislocated his hips. I suppose it's possible. I could be wrong. I think that's just way down on the list even below idiopathic avascular necrosis."
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. The Full Commission has held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence (1) the injury arose out of and in the course of his employment; and (2) the injury caused internal or external harm to the body which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(4)(A)(i) and § 11-9-102(4)(E)(i) (Repl. 2002). He must also prove (3) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(4)(A)(i). Moreover, the claimant must establish (4) that the compensable injury is supported by `objective findings' as defined in § 11-9-102(16)." Ark. Code Ann. § 11-9-102(4)(D);Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudup v. Regal Ware, Inc., 31 Ark. App. 804, 20 S.W.3d 900 (2000). If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.
Medical opinions based upon "could", "may", "possibly", and "can" lack the definiteness required to satisfy Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999) which requires that medical opinions be stated within a reasonable degree of medical certainty.Frances v. Gaylord Container Corporation, 341 Ark. 527, 20 S.W.3d 280 (2000). In Frances v, Gaylord, supra. the Arkansas Supreme Court expressly overruled a prior Court of Appeals decision to the extent that the Court of Appeals had held that such indefinite terms where sufficient to meet the requirements of Ark. Code Ann. § 11-9-102(16)(B). In Frances v. Gaylord, the Arkansas Supreme Court held that a doctor's opinion that an accident "could" produce a lumbar disc injury was insufficient to satisfy the standard of within a reasonable degree of medical certainty. Moreover, in Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), the Arkansas Supreme Court held that a medical opinion based upon theoretical possibility of a causal connection did not meet the standard of proof. In Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001), the Arkansas Supreme Court held that in order for a medical opinion regarding causation to "pass muster" such opinion must be more than speculation, and go beyond possibilities.
The claimant fell on his left hip and left side on December 3, 2003. At no time has the claimant complained of right sided hip pain. While Dr. Cooper, claimant's treating orthopedic surgeon, opined that the claimant's avascular necrosis is not related to the claimant's fall on December 3, 2003, claimant's present physician, Dr. Van Ore, is relating all of the claimant's medical problems, including the right hip avascular necrosis, to this fall. Dr. Van Ore opined that the claimant's type of necrosis could show up in 2 weeks, however, he did not set forth the basis for this statement. After weighing all the evidence, we find that Dr. Cooper's opinions are entitled to greater weight. The record fails to reflect whether Dr. Van Ore is a general practitioner, or whether he maintains a field of medical specialty. Furthermore, the extent of Dr. Van Ore's treatment of the claimant has not been established. It is unknown whether he has treated the claimant extensively or only just a couple of times. Finally, with regard to establishing his causation opinion, there is no evidence whether Dr. Van Ore took a complete history of the claimant. On the other hand, Dr. Cooper treated the claimant within approximately a month of his injury. Dr. Cooper performed a chordae compression of the claimant's left hip on January 27, 2004, and closely monitored his treatment and recovery after this procedure. Nothing about the claimant's avascular necrosis ever led Dr. Cooper to believe that the claimant's condition arose out of his work-related fall. Dr. Cooper took a complete history of the claimant including but not limited to the claimant's alcohol consumption, steroid usage and scuba diving experience. We find it relevant that the claimant suffers from bilateral avascular necrosis, yet he has never alleged to have injured his right hip at work. Even after the claimant advised Dr. Cooper that another doctor had told him that avascular necrosis could develop in 30 days, Dr. Cooper continued to maintain that it was highly unlikely that the claimant developed this condition in both hips from falling down, without any evidence that he "at least partially dislocated both his hips." Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained an injury to his left hip in the form of avascular necrosis on December 3, 2003.
With regard to the claimant's back injury, we find that the evidence supports a finding of compensability. The claimant was clearly involved in a work-related incident when he fell on December 2, 2003. The claimant reported his injury and was provided medical treatment. Although the claimant initially denied any back pain, other complaints such as pain in the buttocks radiating into the leg, prompted a diagnosis of lumbar strain. Claimant was treated conservatively which did not relieve his pain. Subsequent MRIs revealed evidence of a bulge or herniation at L5-S1. In a report dated April 20, 2004, Dr. Raben opined that this condition could have been caused by the claimant's work-related injury. In addition, throughout his course of treatment of the claimant, Dr. Cooper maintained that while the claimant's avascular necrosis was not related to the claimant's fall, the claimant's back problems were related. Although the respondents argue that the claimant suffers from degenerative disc disease for which he has sought chiropractic treatment over the years, we find that the initial diagnosis of lumbar strain which did not respond to conservative treatment, was incorrect. The preponderance of the evidence reveals that the claimant sustained an injury to his low back in the form of a disc bulge or herniation at L5-S1 as a result of his work related fall on December 2, 2003.
Accordingly, we find that the decision of the Administrative Law Judge must be affirmed, in part, and reversed, in part. The finding of compensability of an injury to the claimant's left hip is hereby reversed. Likewise any award of medical or indemnity benefits arising out of an injury to the claimant's left hip should be reversed. The claimant has established that he sustained a compensable injury to his low back. Therefore, the finding of compensability of an injury to the low back and the award of medical and indemnity associated with the claimant's low back injury is hereby affirmed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner concurs, in part, and dissents, in part.
CONCURRING AND DISSENTING OPINION
I concur in the Majority's opinion finding that the Claimant sustained a compensable injury to his low back for which he is entitled to indemnity and medical benefits. However, I respectfully dissent from the Majority's decision to reverse the Administrative Law Judge's finding that Claimant sustained a compensable injury to his left hip.
The Majority found that Claimant was involved in a work-related incident when he fell on December 2, 2003. Further, they found that Claimant was initially treated conservatively and that an MRI later performed on the Claimant revealed evidence of a bulge or herniation at L5-S1. The Majority relied on Dr. Cooper's assessment that this condition was related to Claimant's compensable injury and found that the preponderance of the evidence reveals that his injury is compensable. I concur with the Majority's finding of compensability for Claimant's back injury.
However, I dissent from the Majority's finding that the Administrative Law Judge should be reversed as it relates to the compensability of Claimant's left hip injury. I believe that this conclusion is erroneous in two respects. First, based on my de novo review of the record, I find that the Claimant proved by a preponderance of the evidence that he aggravated a pre-existing left hip condition while working for Respondent. The Claimant testified that he fell on his left side onto the concrete floor, felt immediate pain, reported his fall to his supervisor and that medical treatment was then provided to him. Tests of the Claimant's low back and left hip reveal that Claimant has a herniated disc at the L5-S1 level and that he has avascular necrosis of the left hip. I find that the avascular necrosis was pre-existing because it was also found in his right hip, but that it was asymptomatic until the Claimant fell at work. Since Claimant's fall, he was consistently symptomatic on the left side.
Secondly, one of Claimant's treating physicians, Dr. Stevan M. Van Ore reported that Claimant has bilateral avascular changes in both femoral heads found approximately one month after his fall. Dr. Van Ore wrote that "this type of necrosis can show up within two weeks." He also stated that the Claimant "also has a herniated disc at the L5-S1 with encroachment" and that Claimant "didn't have either of these problems until his fall." Dr. Van Ore also stated that "it is all related" and that the Claimant "needs a total left hip and possibly a diskectomy."
For the above stated reasons, I respectfully concur in part and dissent in part.
________________________________ SHELBY W. TURNER, Commissioner